Crisis and Command: A History of Executive Power from George Washington to George W. Bush (5 page)

New York's definition of what fell within the executive power remained fairly unexceptional. Indeed, it was similar to those that Pennsylvania had given its pitiful executive. It was only when these powers were in the hands of an independent and unitary executive that vigorous government emerged. These lessons did not go unnoticed. New York's experience influenced not only the later constitution-writing efforts of Massachusetts and New Hampshire, but also the work of the Philadelphia Convention.
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During the struggle for ratification, Publius -- the pseudonym used by Alexander Hamilton, James Madison, and John Jay to author
The Federalist
-- expressed the thoughts of many when he declared that the New York constitution "has been justly celebrated both in Europe and in America as one of the best of the forms of government established in this country."
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As Charles Thach concluded, "[H]ere was a strictly indigenous and entirely distinctive constitutional system, and, of course, executive department, for the consideration of the Philadelphia delegates."
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The Framing generation had learned another corollary to this lesson. A legislature unbalanced by an independent executive brought its own dangers. In states such as Pennsylvania, where the executive had no veto, was straddled by a privy council, and was chosen by the assembly, the legislature exercised virtually unlimited authority. During the Constitutional Convention, James Madison argued that "[e]xperience has proved a tendency in our governments to throw all power into the legislative vortex. The Executives of the States are in general little more than cyphers; the legislatures omnipotent."
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Legislative supremacy produced such "instability and encroachment" that if not checked, Madison predicted, "a revolution of some kind or the other would be inevitable." Though the colonies had won the Revolution, unrestrained state legislatures failed to follow through on the 1783 Peace Treaty with Britain, imposed destructive trade barriers, and passed laws that oppressed minorities and property owners. Despite the colonies' victory, the problems of government were so serious that historians came to describe these years as the "Critical Period."
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Later constitutions followed New York's example. Massachusetts, which adopted its constitution in 1780, and New Hampshire, which ratified a similar document in 1784, both provided for executives elected directly by the people with independent constitutional powers. Those states, for example, gave their governors the authority to make war, for offensive reasons as well as self-defense. Massachusetts's experience marks a sea change in attitudes toward the executive during the Critical Period. In 1778, the state legislature drafted a constitution for ratification by the people that required the governor to carry out the laws of the legislature but gave him no independent constitutional powers. The people rejected the proposal, with 28-year-old Theophilus Parsons, a future chief justice of the state supreme court, penning a historically significant critique known as the "Essex Result." Parsons argued that the 1778 constitution violated the separation of powers by undermining the independence of the executive and concentrating authority in the legislature. He rejected the weak executive and called instead for a directly elected governor who would share the power to veto legislation with a privy council. Dividing authority over the military, in particular, was foolish: "Was one to propose a body of militia, over which two Generals, with equal authority, should have the command, he would be laughed at." Control over the military, the Essex Result concluded, should rest alone in the hands of the governor. Although Parsons recognized that the executive might try to expand his overall authority through the exercise of his war power, he decided that the governor's ability to respond quickly to emergencies justified centralization in the governor. The executive must be one person, Parsons argued, to clothe it with the speed and secrecy to enforce the laws internally and to defend against external threats.
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Massachusetts's constitution of 1780 followed through on Parsons's arguments. It created a "supreme Executive magistrate," who was elected directly by the people for renewable one-year terms. The executive was to be Commander-in-Chief of the armed forces and hold a conditional veto over legislation. With the consent of a council, the governor would make all appointments to the executive and judicial branches. To the reformers who would attend the Philadelphia Convention, the Massachusetts constitution "came to stand for the reconsidered ideal of a 'perfect constitution,'" writes Wood. It "seemed to...have recaptured the best elements of the British constitution that had been forgotten in the excitement of 1776.
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Its enumeration of the powers vested in the Commander-in-Chief, understood in light of the Essex Result, illustrates the contemporary understanding of the proper and most effective structure of the executive branch.

New York and Massachusetts provided the models for the delegates who met in Philadelphia in the summer of 1787. The Framers could have followed the path they knew best and treated the executive as Congress's Clerk-in-Chief, but instead they chose a less popular but more effective direction. By the end of the Critical Period's exuberant experimentation with dominant legislatures, states began to opt for executives very much like that of 1787. Why? As Gordon Wood has argued, the Framers believed that the 1776 constitutions had been the product of excessive revolutionary fervor. Unchecked by independent executives and judiciaries, the state legislatures had passed legislation infringing property rights, cancelling debts, and oppressing minorities. Factions, or special interest groups working at the expense of the broader public, had arisen. Unrestrained democracy had produced sharp and abrupt swings in policy that destabilized the newly independent states. The movement to restrain out-of-control legislatures, at both the state and national levels, proved so strong that Wood has likened it to a "Thermidorian" reaction.
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The object of this constitutional counterrevolution was a restored executive to check the excesses of the legislature, control law enforcement, appoint and manage government personnel, and conduct war and foreign relations. With Montesquieu's ringing injunction that liberty could only survive with a clear separation of the branches of government, the Framers arrived at the Constitutional Convention determined to create an executive that would be elected independently of the legislature and possess its own inherent authorities, so as to avoid the manipulation by the legislature that the revolutionary states had experienced, and to confound factions. As an authoritative work on the revolutionary constitutions has observed, "[T]he reaction against the colonial governor was so weak that it did not lead to parliamentary government with an executive committee of members of the legislature, but rather that within a decade the American system of presidential government evolved with full clarity and permanence."
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CHAPTER 2
Creation

WHEN THE DELEGATES to the Constitutional Convention met in the summer of 1787, the only thing that made them more uncomfortable than the Philadelphia heat was the topic of the executive. Madison's notes record that when James Wilson of Pennsylvania moved that the executive power be vested in a single officer, "a considerable pause" followed. It took Benjamin Franklin, who rarely threw his considerable prestige into the debates, to demand that "the gentlemen deliver their sentiments" because "it was a point of great importance."
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But the Framers refused to consistently and directly address the chief problem -- how to republicanize the executive. Rather, they reached a series of incremental decisions, many of them in committees or late in the convention.

Federalism dominated the convention: the representation of the small states in the Senate, the federal ability to tax and regulate individuals directly, and the issue of slavery. The Framers discussed the Presidency three times that summer but made little progress until the very end. Structure dominated: how many executives should there be, how chosen, and how removed? Sustained attention on the executive's substantive powers came only during the final rush near the Convention's end. With only two weeks to go, the draft located many executive powers either in Congress or the Senate. Then, a compromise was reached on the method for selecting the President; a logjam broken, powers soon migrated from the legislature to the executive. What emerged from the Constitutional Convention was a Presidency with its own independent powers, equal to those of the legislature, one that both in theory and in practice would prove to be up to the demands of future generations.

PRESIDENTIAL POWER AND WRITING A NEW CONSTITUTION

DISCUSSION BEGAN ON June 1 with the Virginia Plan, introduced by Virginia Governor Edmund Randolph and privately drafted by Madison. The Plan included two of the three core executive powers identified by Blackstone, Locke, and Montesquieu: to "execute the National laws" and to "enjoy the Executive rights vested in the Congress by the Confederation" such as foreign affairs,
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but it lacked the veto over legislation or the power to pardon. Instead, it proposed a Council of Revision made up of the President and federal judges to review congressional acts. Madison broke the executive power down into the right to "carry into effect" the laws, to appoint inferior officers, and to perform other functions "not Legislative nor Judiciary in their nature" as Congress might delegate.
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What the Virginia Plan granted in substance, it took away in structure. Its executive would be chosen by the legislature, would serve only one term, and might consist of more than one person. Thus, it would have no claim to direct popular support nor ability to influence legislation. It would have resembled the parliamentary system of government that exists in much of the world today, in which the executive branch is simply the leader of the majority coalition in the legislature. While the Virginia Plan forbade members of the legislature from serving in the executive branch, legislative appointment of multiple executives would have made the office another arena for legislative deal-making. Cabinet officers would have felt beholden to their supporters in Congress rather than to the chief executive. Even in foreign affairs, a President directly selected by Congress would enjoy little independence. As Charles Thach observed, if the Virginia Plan had prevailed, "the American executive must have been of a type resembling in many fundamental ways the executive of modern Switzerland."
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Some wanted to create a weak President. Randolph believed an executive unified in one officer to be the "foetus of monarchy."
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Roger Sherman supported legislative election of the President because he is "nothing more than an institution for carrying the will of the legislature into effect."
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Sherman believed that Congress should appoint any number of individuals to head the executive branch, depending on the job at hand, and that Congress should be able to fire them "at pleasure." Early proposals that also won favor among the delegates limited the President to a single seven-year term. The main alternative to the Virginia Plan, the New Jersey Plan, proposed a multiple Presidency, chosen by the legislature and limited to one term.

Almost from the start, however, several of the leading lights of the Constitutional Convention sought to move the Presidency toward the New York model. Wilson argued early on for a single President to be directly elected by the people. Unification of the executive branch in one person would give the "most energy, dispatch, and responsibility."
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He urged the delegates to toss aside Madison's council of revision, observing that a committee "oftener serves to cover than prevent malpractices." Wilson also wanted the President to have an absolute veto over legislation to protect his independence from legislative encroachment and to be eligible for an unlimited number of short terms, which would increase his popular accountability. Direct election by the people had proven both "convenient and successful" in New York and Massachusetts. Gouverneur Morris rose in support, commenting that otherwise, the President would become the "mere creature" of Congress and subject to "intrigue," "cabal," and "faction."

While a radical change in structure, Wilson's proposal broke no new substantive ground. Wilson agreed with Madison that the President's power was mainly to carry out the laws and appoint officers. Wilson "did not consider the Prerogatives of the British Monarch as a proper guide in defining the Executive powers. Some of these prerogatives were of a Legislative nature. Among others that of war & peace."
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Charles Pickney agreed that the executive should retain his traditional powers, but that they should not include all of the Crown's foreign affairs authority. He "was for a vigorous Executive but was afraid the Executive powers of [the existing] Congress might extend to peace & war which would render the Executive a Monarchy, of the worst kind, to wit an elective one."
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John Rutledge supported Wilson "for vesting the Executive power in a single person, tho' he was not for giving him the power of war and peace." Early supporters of an independent President worried that all of the "executive powers" would include making war and peace. But even the New Jersey Plan, noteworthy for its restrictions on the executive, declared that the President shall "direct all military operations; provided that none of the persons composing the federal Executive shall on any occasion take command of any troops, so as personally to conduct any enterprise as General."
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